Saye v. Garrard , 204 S.W. 684 ( 1918 )

The main purpose of the contract furnishes the standard by which the validity of agreements of the kind in suit may be determined, according to the tests laid down. Gates v. Hooper, 90 Tex. 563, 39 S.W. 1079. And if the contract, when considered in connection with the circumstances under which it was made and the conditions that give rise to its execution, is found to have the obvious purpose and necessary result of establishing a "combination" or "trust," then the contract is unenforceable. Robinson v. Levermann, 175 S.W. 160. But if the contract, when considered in connection with the circumstances under which it was made and that give rise to its execution, be found to be one in which the real purpose is not to constitute the transaction a "combination" or "trust," then the statute is not contravened. Malakoff Gin Co. v. Riddlesperger, 133 S.W. 519. And under the evidence in the instant case the real purpose of the sale and purchase is not, it is believed, so obvious and free of uncertainty as to justify the court in withdrawing the issue from the jury. For in one view of the evidence it may be said to appear in point of fact there was a "combination" or union within the meaning of the statute. But in another view of the evidence it may be said that the real intent and purpose of the plaintiff and Smith Bros, was for the plaintiff to purchase the appellant's stock and then resell a selected portion of it to Smith Bros. And since the jury, in their province, have made a finding of fact, with evidence in the record to support it, that the plaintiff and Herbert Smith did not jointly agree or combine to purchase the stock, the case of Gin Co., supra, it is thought, rules the case. The first, fourth, and fifth assignments of error are overruled.

If the appellant by breach of the alleged contract destroyed the profits which the evidence shows would probably have in some part accrued to the plaintiff from the contract, then the plaintiff in this case may recover such damages as the jury may determine. Profits of which a person has been deprived by the fault of another may form a base for a claim of damages. Norris Lumber Co. v. Harris, 177 S.W. at page 517.

The judgment is affirmed.